more than 90 percent said you do. keep on voting, we patient you participatingful jon: thank you for joining us. jenna: "america live" starts right 2340u. -- right now. megyn: this is a fox news alert, we have brand new developments with this unveiling of the new republican agenda called the pledge to america, that's where we begin this hour of "america live", i'm megyn kelly. while this pledge is only two hours old, moments ago vice president biden launched a scathing attack accusing the gop of wanting to gut social security and take away health care benefits. using terms like malarkey and myths to talk about the gop's description of the health care overhaul and saying his mother would roll over in her grave if she thought her son was in any way part of reducing health care coverage to seniors, another thing he says is a myth proposed by the gop. what the republicans are vowing to do as part of this

pledge, in part, is to permanently stop what they call job killing tax hikes. they also do want to repeal or scale back health care reform, and they say replace it with other reforms. also, they want to cut federal spending. >> our government has failed us. from the billion dollars bailout, to the stimulus package that failed to stimulate, to the government takeover of health care, you cried stop. but the democratic majority in washington has refused to listen. we are here today to tell you that we have been listens. and we've heard you. we heard you loud and clear. megyn: anchor of "special report" bret baier is live in washington and joins me now. bret, this pledge is getting firey reaction from both sides of the aisle, you have conserve i was -- conserve i was like eric ericsson calling it direct, others,

warmed over stew and the national review calling it border than the 1994 contract are america. frame it for us. >> reporter: there was a debate inside the republican caucus of whether to do this or not. obviously they look at polls across the country and democrats are struggling in many races and they believe that even on this current track, it's possible that the house could change hands to gop control. so there's a debate whether to do this. this is a bit of a risk, that you put this stuff down on paper, but in the 21 pages, having talked to people up there on capitol hill in the republican caucus, they believe that there is a blueprint here about how the government p can get on a path toward a balanced budget. they believe that these are things that the american people are seeing and want government to do, and they believe that some moderate democrats actually look at this pledge to america and say this is something that we could sign on to. in fact, on the health care part, you heard vice president biden speaking

about, very fiery, on that conference call just a few minutes ago, the health care part is a repeal and replace, according to house republicans, and they want this medical liability, the tort reform, put in there. that is attractive to many democrats. in fact, there isn't a single democrat that we could find who is running on health care as an issue in campaigns. megyn: you know bret, it's interesting, though, because with all the polls showing republicans payed to make gains in both houses come november, forget whether they're the majority but make major gains in both houses it's risky to do anything to upset the apple cart, like put down in writing what you stand for. i mean, it may sound pretty basic, but there is a risk inherent in doing it. from the other side, however, we're not hearing too pointed criticism over what vice president biden says, most like the white house sort of came out and said it's more notable for what it doesn't say, so have they really boxed themselves in? >> well, you know, you have

heard some folks like house majority whip jim khrao*eu button, congressman from south carolina, who came out and called it a plague on america, not a pledge to america, that's a phraseology that then president clinton used in 1994 when he called the contract with america a contract on america. that the time, that backfired, republicans think by putting this on paper and sensing what they're sensing from town halls and e-mails and exchanges, that they think that this is a blueprint for them. the question is whether it causes some problems for some republicans who get hammered on some of the specifics. it does get fairly specific in the 21 pages. megyn: it does. it goes on about how they're going to require congress to post bills online, 72 hours before votes, make sure bills are passed one at a time, can't pack legislation with numerous revision, they want to repeal and replace the health care bill, on and

on, and we'll explore that more fully as the two hours goes on. thank you very much for your insight the on it, we appreciate it. >> thank you megyn. megyn: fox news sunday is exploring this pledge push, this host, and the host, chris wallace, will have inclusive interviews with congressman john boehner, house minority leader and kevin mccarthy and get reaction from the democratic house majority leader steny hoyer. again, that's this weekend, fox news sunday, check your local listings for the times. another fox news alert, we're just getting video from outside the united nations, where thousands of people are protesting, ahead of a speech by the president of iran. a number of groups and speakers are warning about the consequences if stronger action is taken to head off iran's nuclear program. ironically, iran is asking the united nations to make it a member of the very group that is supposed to regulate the threat of nuclear weapons. they basically want to be on the commission that would

regulate themselves. we are live with ambassador john bolton, used to be the u.s. ambassador to the u.n., who is in the middle of one of these protests. he has gone over to the united nations and is helping lead one of these things. he'll join us live, moments away. well, tonight in dal a. homeland security secretary janet napolitano is scheduled to talk about border security and the administration's efforts to crack down on illegals, this comes just 24 hours after the secretary and arizona senator john mccain exchanged a few words on the results of that border security effort. trace gallagher, track thank now live from our west coast bureau. hey trace. >> reporter: hey megyn. this back and forth did get testy, john mccain started out by grilling janet napolitano about the polices of immigrations and customs enforcement, in fact, senator mccain mentioned the reporting we've done about ice proposals that would go after illegal immigrants who are convicted of felonies and maybe let the rest go.

here's the exchange. now, listen to the tone and tenor. watch: >> apparently the draft was posted on ice's website last month. could you testify as to what in the world is going on here? >> yeah, sure can. >> good. >> i'd be happy to. first of all, where i sit has not changed my position. >> clearly you have. >> no. >> yes. >> i disagree, mr. -- senator. but what we have done in the past two years is put more resources at the -- at the southwest border than ever before. >> reporter: it kind of went on like that back and farther, napolitano went on to say the numbers speak for themselves, john mccain said law enforcement officials in arizona should speak for themselves. watch: >> they're down there on the front line, and they'll tell you, they have not seen improvement. >> well, that sheriff -- sheriff ogden and some of

the other sheriffs as well -- >> we'd be more than happy to. >> let's get them all up here. >> they have a -- >> let's get them all up here. >> thank you both. >> so the saying is bring them all up, let them testify and certainly the different sheriffs have different opinions but it's interesting that dhs is getting push pwaurb from within the democratic party, gabriela giffords, a congresswoman from arizona is using it as a platform, she's against, by the way, arizona's illegal immigration law but says there's a possibility the border patrol is neglecting, and she wants to have answers as to why the border patrol may be neglecting parts of that southwest border. the issue is far from over. very contentious on capitol hill. megyn: sure was, you could sense the tension there. trace, thank you. >> yes. megyn: off on the campaign trail now we go where a number of candidates across the cub are getting ready to welcome michelle obama, the

first lady has a busy schedule of criss-crossing the country in the next few days and molly henneberg joins us live from d.c. on what exactly the strategy is here. molly, there had been talk about whether they would offer the first lady out to campaign for democrats, saying she's actually much more popular in the polls than president obama is, and the white house sort of hemmed and hawed about what would happen, now we know it's happen, so she's campaigning for a number of democrats in certain races. why were these particular races chosen? >> reporter: hi megyn. it's not unusual that a first lady is more popular than other husband, that happens most times actually in the white house. as far as the race, in some cases mrs. obama will be campaigning for incumbents who are in key senate races for democrats, seats the democrats must hold on to in order to have any chance to hold on to the senate in november. she'll start in mid october, going to wisconsin for senator russ feingold who's been running behind his republican opponent, also illinois for lexi -- alexa

gun you'llas, she may have sway there, colorado senator michael bennett, washington senator patty ministery, house speaker nancy pelosi and california senator barbara boxer. the first lady's office says, quote, from the beginning she's wanted to hit the campaign trail. it was just a matter of figuring out what would work with her schedule and what would be most useful. an a.p. poll this month sounded the first lady has a 68 percent approval rate and as i said, first ladies are often more popular than their husbands. megyn: that's probably the way it goes, because they don't have to put themselves out there as much as the president does. how partisan is she expected to be? >> not very f. at all. her job will be to raise money and stay on safe topics. here's what one political analyst said: >> if the white house does it right, the first lady doesn't do hard core partisan politics. she says nice things about the candidate she's with, she doesn't attack the other party or the opponent. >> reporter: but a visit by the first lady also gives

gop candidates a chance to suggest the democratic opponent isn't doing well enough on his or her own. megyn: thank you molly. big new developments in the new black panther voter intimidation case. a top justice department lawyer who led this case before it was suddenly dismissed is now set to take the stand in front of the u.s. commission on civil rights. with some possibly damaging testimony about how politics and race may be driving decisions at justice. this is a man who was subpoenaed to testify months ago, the doj has told him he may not testify. it now appears he will ignore that order that he's been listening to for months, and he will give testimony under oath tomorrow. plus, we're getting warnings to expect an increase in attacks, like what we saw at fort hood. at the same time, president obama says that we can, quote, absorb another attack like 9/11.

what exactly did he mean by that? the fallout continues today. and having a little too much fun on the job in motor city. you're not going to believe this. you're not going to believe this report! stay tuned right here, to see an exclusive investigation in which fox caught drivers and workers drinking and smoking pot before they returned to make your car! >> hate to be a buzz kill but shouldn't you guys be building cars, don't you guys work out at the chrysler factory? you know, the government spent a lot of money bailing you guys out, and you coming out here on your lunch break, drinking like this? where are you guys going, man? you going to go build some cars now? after you had a few beers?

megyn: this is a fox news alert, a bombshell development in the new black

panther voter intimidation case, a top justice department attorney, do you believe this man is currently with the department of justice, that's what we knew as of a day or two ago, is now set to defy doj orders and to testify against the doj's will on how justice made its decision on a controversial case of voter intimidation. the man's name is christopher coats. after months of silence, mr. mr. coates who well is currently employed dithe doj as a top attorney will now apparently defy orders from his bosses and will testify before the u.s. commission on civil rights. that testimony could potentially be damaging to doj officials who have testified before that same commission under oath that the department of justice does not have a policy of enforcing voting rights laws unequally, depending upon the race of the parties involved. now, this all started, as you may recall, at this

polling station in philadelphia on election day in '08 where some members of the new black panther party were caught on tape allegedly intimidating voters. the justice department under chris coate s-flt and christian adams won that case, and superiors at the doj ordered them to drop the case, literally, snatching defeat from the jaws of victory. shannon bream has been following this, she's live in washington. so j. christian adams came out, shannon, after he left the doj in protest after that case was handled and said the doj has a policy of not enforcing voting rights laws equally depending upon the race of the thaerts involved. eled all along if the commission on civil rights investigating this case could speak with one man, crister koetes -- coates, he would verify his testimony and now we learn what? >> this is stunning the fact that coates is going to

testify. coate adams were attorneys in the doj and before leaving, adams did defensive about everything he saw and heard while working there but repeatedly said the man who knows more about this is christopher coates, but he used to be the chief of the voting rights section and that is been transferred to south carolina. adams said under oath, he testified that both he and coates were instructed to ignore the subpoenas that had been sent to them by the civil rights commission, he says those orders came from doj. until now, coates still believes for the department of justice, has not complied with the subpoena. tomorrow everything changes, he goes before the commission under oath, with details about what happened with that black panther case and possibly much more and coates' testimony comes at a time when new questions about regular raised by another assistant in the doj who has testified before the commission, he said under oath that no political appointee, meaning nobody from the administration,

intervened to get those cases against the black panther members thrown out. well, a government watchdog group has sued to get documents related to the case and they said what they found raises serious questions about what perez testified to under oath. as for accusations that the administration in some way did get involved in this case, the department of justice tells us this, quote, the career attorneys in the civil rights tkweurbgs we're talking about nonpolitical appointees, people who just work there, they made the decision regarding the disposition of the case. these career attorneys' brief -- attorneys briefed leadership offices about their decision making and provided answers to relevant questions. the other person who may provide plenty of information just how involved the administration was or wasn't is chris coates, tomorrow he goes under oath and that could send shock waves through the department. the administration said coa tefplt s would back him up. megyn: and the justice department confirms that chris coatees is still

working for the department of justice. you and i wondered if he -- did he quit or get fire and that's why he's going to come ply with the subpoena, and we're learning he did not quit, he's working for the doj and when he takes that oath and offers testimony, it could be explosive. shannon bream will cover it. we appreciate it, shannon. forget, you may remember a department of justice whistleblower skwr-frbgs christian adams brought it to "america live" back in june, adams has repeatedly said if chris coa tefplt s would be allowed to testify it would be a critical turn in -- in this investigation. remember the doj has attacked adams as a guy with an agenda, a guy distorting the facts. no one has ever said that about chris coates, he's very well respected at the doj. take a look at adams testifying before the commission on civil right necessary july. >> i'm confident that what i will be testified about today would be crop crated

if christopher coates would comply with the su and i'm sure he would testify, i'm quite confident if christopher coates were sitting in this chair and were able to come ply with the subpoena he would tell you the same thing. mig i've contacted my sources in this case and i'm told the reason chris coates is finally going to testify tomorrow against the doj's orders is he has had it, he's had it with the misrepresentations that have been made in this case. what does that mean? we have to wait until tomorrow. fox news will be at the civil rights commission tomorrow, you will see what happens in a full report, right here on this broadcast. that's on "america live" tomorrow. >> new signs the democrats have a new plan for the tea party over the next few weeks. one party official cropping -- dropping the f bomb in referring to tea partiers, others firing off nasty e-mails. is that a coincidence, or is this a strategy? we'll have joe trippe, former campaign manager for

howard dean about it. what would the colonel say? critics, crying foul over the new ad space that kfc has chosen to use.

megyn: 40 days left until the midterm elections and it seems like the attacks on the tea party are getting louder every hour. ohio democratic party chair man chris redford was caught on tape using the f word to describe members, f

blank ers is how he referred to them. just the day after that, democracy for america sent out a fundraising e-mail denouncing, quote, tea baggers as racist and extremist. and even former president jimmy carter is not only taking on the tea party, he also took a few shots at fox news this week. >> a lot of gullible folks in the united states actually believe what fox puts forward as facts, when most of it is just complete distortions. and they've also attempted to twist around what its lig -- his religious faith is and whether or not he's american and so forth, so i think that's a new version of cable news that was not there, thank goodness, when i was there, but i would attribute most of the negative attitude not to the facts but to the distorted facts that comes out of fox. megyn: well, joe trippe was

campaign manager for howard dean in 2004, he's also a fox news contributor. all right joe, so that group, democracy for america, that put out, that called tea party members tea baggers, racist and extremist was founded by your former boss, howard dean and now it's run by his brother. is that a coordinated effort to de mommize the tea party by democrats who are desperate to hold on to seats come november? >> no, i don't think so at all. look, it doesn't make sense to do that. i think a lot of these tea party candidates like o'donnell, miller, up in alaska, buck in colorado, angle in nebraska, it's better to take them on individually where some of the views are clearly out of the mainstream and it caused problems, in o'donnell's case, she's losing badly and angle is in a dead heat with reid out in nevada, when buy all accounts, had they nominated somebody more mainstream out of the gop, they would have had a better shot at defeating reid.

megyn: but you think it's a better strategy to do that, but my question is have your democratic colleagues already chosen a different strategy, because not only do we see the big push by democracy for america, but we've got our own vice president, this is from joe biden, maybe the best thing to happen us lately is the tea party wins, maybe it will shake some of our constituency out of their lethargy and says there's a choice from democrats and the tea party. this ain't your father's republican party, it's the republican tea party and "the new york times", of course, i guess not to be totally surprised, i guess, calling them the growling face of a new fringe. they're going to steer us into the swamp for years to come. so it feels a little coordinated, joe. >> i don't think it's coordinated. i think it's just everybody -- look, when i was running the howard dean campaign, this is exactly what everybody was saying about the dean movement. but the dean movement, later on, delivered the activists, the energy that came out of that movement created -- help create the wins in 2006

and 2008 for the democratic party. so -- by the way, republicans and democrats alike were announced in the dean movement. so i -- denounced the dean movement, so they announced a pushback against tea party in general, that doesn't need to be there. the reality is take these candidates on, one on one, expose their differences with the mainstream, which is -- >> megyn: but that's not as helpful because the democrats need to gain a foothold in so many races across the country. great, they'd love to get a leg up on angle and o'donnell, but they want this widespread and there was an article six weeks ago saying this would be the tack teurbgs that they were going to shift to demonize the party because that was the one thing that would energize the democrats' base and that's where i want to ask you about, and ask you about how the --o now the attacks resume on fox news, another way mr. quarter and others may believe to energize certain on the far left. >> megyn, you hit it. that is the one reason to do

it, is as we've seen in poll after poll, there's a lot more energy because of the tea party and within republican ranks than there is on thedalic side. so i think if there is a movement to do this, it's more to energize democrats to actually turn out when people are worried about a depressed democratic turnout than it is aimed at the tea party in general. i mean, i think it's more to io understand that it may make sense to energize the base. i don't really think so. megyn: one last question for you, is it smart for the tp-rpler president of the united states to call anybody who watches news, gullil -- gullible, essentially you're staupd if you watch fox? >> i've never understood it. that's why i'm here. we've got to make the case to everybody and make our arguments to every audience, and there's an audience here, and to denounce with a broad bush the tea party or

the fox audiences, i don't think is very smart politics. again, unless it's out there, to try to make some intensity on the democratic side, again, i think that's better to do in local races, not a nationwide effort. megyn: there's a question about whether it could infuse more energy on the other side as well, the tea partiers don't generally like being called that. but joe, always interesting hearing your insights, thank you very much, sir. >> thanks megyn. megyn: shocking new details from the witness stand in the horrific home invasion murder case in connecticut. wait until you hear what one father had to listen to as he fights to make sure that the death penalty is imposed for the two men, and i use the term men loosely, accused of brutally murdering his wife and two daughters. and this is the scene in washington on september 11th. so what did the commander in chief mean when he recently said to reporter bob woodward that the united states could absorb another

attack like this? some answers, right after ge this bckro:eak.

megyn: fox news alert out of louisville, kentucky, in less than 30 minutes we expect to hear from republican senate nominee rand paul in tennessee. he'll be holding a live news tkproepbs. we're not sure exactly what he is set to address. that tea party favorite, of course, kicking off the campaign against democrat jack conway, both candidates will take part in a

televised debate this weekend. got our eye on it for you. home grown extremists are more sophisticated, harder to detect and better able to connect with other extremists, in certain case, they are more operationally capable than what we have previously seen. megyn: that was a disturbing warning from fbi director robert mueller yesterday. but as we learn about the growing threat to the united states, questions are being asked about what president obama meant what he recently told reporter bob woodward, quote, we can absorb another attack like 9/11. k.t. mcfarland is national security analyst and my guest now. there's no question the president was putting it in the context of, you know, we rebounded from 9/11 and we would rebound if god forbid something else happened to the country but a lot of people raised questions about even his willingness to talk about our ability to absorb a 9/11-style attack and you're one of the people who have raised that question. >> i'm concerned with the

callusness of it and if you can talk about it's your priority to make sure we can recover and everything, he's not doing it. if your priority is to protect us against another terrorist attack or a home grown terrorist attack, you would be doing something along the border. we know an increasing number of illegal imtkpwrapblts coming through the border are not hispanics but coming from somalia, from countries where there is an al-qaeda presence. the other thing he should be doing, the real worry, according to this book the quote was taken out of context, the white house said the president is really concerned about a terrorist attack that's coupled with nuclear. well, okay, then mr. obama, what are you doing about you in clear weapons in iran? you just delivered another lecture at the u.n. about how you're reaching out the hand of friendship to iran, but iran is not buying it, iran is -- >> megyn: so our viewers know, today at the u.n. the president said the united states and international community seek a resolution to our differences with iran and the door remains open to diplomacy should iran choose to walk through it. >> that same president, his

national security person said iran will have a nuclear weapon within a year. what are we still talking about? this is the tenth offer of diplomacy. what are we doing to stop iran's nuclear program? if the president's priority is to prevent another terrorist attack in the aupbsd his greatest nightmare is a terrorist attack coupled with some kind of nuclear weapon, nuclear device, what is he doing to stop iran's nuclear program? megyn: what does that tell you, that he made thisment to woodward, said this about iran, there's no question the department of homeland security has taken a totally different tact when it comes to stopping illegals and crossing the border, they only worry about those who commit crimes once they come into this country. basically, if you don't become a criminal once you're here, they're not worried about you anymore and that doesn't speak to the people coming as national terrorists from somalia. what does all of that tell you? >> look, i've been in three administrations and when you say you have a priority, -- priority, that means you only have time in the day and sort of the focus of the attention in the white house, to have -- they can have three or four

priorities. where have the priorities been? health care, the economy, all this is good, but what about terrorism? what about the fact that his own homeland security adviser has just said we now see a change, we now see home grown terrorist, we see people that we didn't see before, either in the united states, or already because they're citizens, they're second generation, we see them becoming radicalized. how is the president doing? to me it should be his first priority, protecting the american people. megyn: the report was disturbing because it said among other things, make sure i get this right, that al-qaeda and its allies are likely to attend small scale, less sophisticated terror attacks in the united states. saying and it's really hard to detect those threats in advance, and more and more, you're hearing janet napolitano and others talk about how it's the home grown domestic smaller scale terror attacks that we really need to worry about. when you hear that and you hear president obama saying look, we can absorb it, do you feel like it's -- >> i don't. i think they're worried, and we have in the united states confident dollars ourselves in the last -- since

september 11th, saying we don't have home grown prorbgs we're not like europe, we're not like great britain, the second generation in america, they're basically at the mall, worried about friday night football games, they're not radicalizing, finding al-qaeda on the internet, and somehow becoming soldiers in a greater war on terror but that's changed. they've now said in the last 12 months when they've seen is an increase of second generation americans, of kids from the suburbs who are finding their way over the internet to radical extremists, and we now have 43 convictions over the last year. so we are now entering a whole new era, and i wish the president would put that as priority number one. megyn: the numbers are disturbing. they say home grown plots here have reached their highest level since september 11th, 2001, according to the national counterterrorism center, and at least 63 u.s. citizens have been charged or convicted of terrorist attacks or related crimes, just in the past year. >> yes, exactly. megyn: since 2009. >> it's something growing. megamig k.t., thank you.

new developments with the growing sex scandal involving the biggest mega church in america, pastor eddy long denying he sexually molested several men in his congregation. we're live, just ahead. the connecticut father forces to relive the horrific day he was attacked and his wife and two daughters were brutally raped and murdered. coming up, what he is doing now to make sure the suspects in this crime, in this trial, has just resumed. we have details from inside the courtroom to make sure they get the death penalty. >> emergency. >> i got bill who is hurt, my neighbor. >> he's at your house? >> yes, he's here. >> get in the house. get in the house.

megyn: trial testimony has resumed now in the horrific 2007 home invasion murder case in connecticut that's gripped the nation.

an investigator, taking the stand today, saying the two men accused of brutally raping and killing this mother and her two daughters exchanged text messages just before they carried out the attack. the father and husband of the victims forced to relive that horrific day in court. tom lewis of wtic in hartford, connecticut filed this report for us: >> graphic and heartbreaking testimony in the murder trial of stevens hayes, much of what was learned yesterday came from a police interrogation of the suspect, in which stephen hayes admit to raping and killing jennifer pettitte and giving a very bizarre explanation for doing what he did. also, jurors were introduced to some very graphic cell phone pictures taken of joshua sarjasky sexually assaulting 11-year-old makaila, also the chief medical examiner took the stand and told exactly how the young girls died. >> the testimony was

graphic, buglio tpheufplt had interrogated hayes moments after his arrest and he was telling the detectives he raped pettitte after jakkowski sexually molested is is-year-old makila. add to go the heart break, cell phone pictures taken by saljetski of what he did with the young daughter, he painted a picture of criminals desperate for money, of a robbery that went horrifically wrong. the medical examiner testified about the final moments of makaila, saying soot was found in the house, which was set on fire. both bodies were burned but the doctor couldn't say whether the burns occurred while the girls were alive. dr. pettitte briefly spoke with the media outside a courthouse. >> it was another tough and painful day for the pettitte family and i think everybody thought that it of the testimony but that's all i have to say. >> also included in the testimony of that state

police sergeant, a detailed description of how this all went down, saying the two, hayes and sarjetski, bought to -- went it walmart to buy bee bee guns to scare the family. they sat in the basement, drinking beer, trying to figure out a way to get out of this when dr. pettitte eventually escaped the house. that's when the two left, set the home on fire. doctor, dr. carver, the chef medical examiner, will once again take the stand, no doubt giving very graphic testimony. tom lewis, fox news. megyn: thanks for that report. ron bookie is the pettitte family spokesperson and treasurer of the pettitte family foundation, the group that tries to help the pettitte family in causes that were dear to their hearts. thank you very much for being here. i have to tell you, this case is so emotional, even for those of us who are on the outside of it, i can't imagine what it's like for you and the pettitte family, the reports of dr. pettitte,

having to leave the courtroom as the autopsy was discussed by the medical examiner, of him breaking down when they showed the photos of his family, it just, you don't know where to begin, but i want to talk to you about the death penalty, because this case has become a referendum on it and we had a former federal prosecutor, a lawyer of note on this program earlier this week, who made the argument that this should not be a death penalty case, saying that it's not the state's business to put people to death and if that's the result in this case, the state is no better than these two animals on trial in this case. want to give you the chance to respond. >> well, i would disagree with that. but the fact is, we do have death penalty in the state of connecticut, and if you do have laws that the state and prosecutors and the state prosecutors are required to enforce those laws, and the fact that someone may disagree whether it should be there, the fact

is we do have a law with the death penalty. and there is some confusion and misrepresentations, that people believe that dr. petit and the petit and hawk family had any control over whether the prosecutor goes after the death penalty or just gives them life in prison without parole, and the petits and hawks do not have any say in this matter. it's up to the prosecutor. and the prosecutor has decided, and i say correctly decided, to go after the death penalty. and quite simply, if you don't prosecute something as horrific as this, as a death penalty case, what could you ever prosecute as a death penalty case? so i think that the state is within their powers to do that and i think dr. petit, who supported the death penalty in certain cases before this happened, certainly supports it now. megyn: ron, how does he do it? how, you know, the jurors broke down in tears, the jurors, broke down in tears when they saw the photos of

those poor young girls murdered and their mother murder, and how does dr. petit, a loving family man who escaped within an inch of his own life, how does he sit in that courtroom and go through that day after day? >> well, i think it speaks to the type of man he is. he is focused on getting justice for his family. and that is the sole focus. and he is doing everything he can to steer himself to move forward, to get through this. unfortunately, after this case is done, he has to go through another one. and all over, with new horrific details that everyone else will see. megyn: yes. >> the petit and hawk families, they've lived with it for three years. it's every day for them. so -- >> megyn: i can't -- i mean, their courage is overwhelming. we're up against a hard break, i hate to cut this short but the petit family foundation.org, if you want to help this family, their

logo is 3doves, a mother bird and two younger birds in a wing and heart shape. we'll be right back.

megyn: fox news alert, one day after a new book makes some stunning revelations about the afghanistan war and the administration, we're about to hear now from two of the key figure necessary that book. admiral mike mullen and secretary of defense gates. they will brief the media in moments at the pentagon. we have yet to hear reaction from them. we will bring that to you just as soon as it happens. right here. well, it is an unusual way to boost your business, but kentucky fried chicken is now slapping its logo on buns. grilled buns, that is.

yes, they are paying girls to advertise bunless sandwiches on their rear ends. a bit over the top? trace gallagher thinks it's a great idea! well, i don't know if he does or not but has been following it from our west coast newsroom. >> reporter: it's a novel concept, right, renting ad space of fannies of female college -- college females? they are paid $500 to help advertise the double down bunless burger and the deal is, you see it here, they give them these tight sweat pants, and then across the bottom, i guess you should say, it says double down across the derriere. this started, by the way, at spa*ling college in louisville, kentucky. i want to show you the actual ad, just a clip. watch this: >> today is the day of double down. kfc double down, double meat, cheese, bake kwroeb, double awesome.

get yours today. >> did you get -- did ut get that right, two fried chicken patties, bacon, cheese, man iz. kfc says this is a carbohydrate cutter but nutritionists said it's a killer, could have as much as 1000-calories. if the girls eat this, their billboards get a lot bigger. >> you'll have guns like that -- you don't have buns like that when you eat sandwiches like that! trace, that was great investigative reporting! >> thank you. thank you, glad to do it. megyn: he's got to go review the film again. coming up, he's a comedian and fictitious political pundit so why on earth is stephen colbert being called to testify in front of congress on immigration? we'll tell you which democrats thought that was a great idea and we'll tell you which democrat, here he is, will join us live to tell you why it isn't. while taxpayers were bailing out their company, guess what these workers at chrysler auto plant were doing? this is stunning! it's all caught on tape, and

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chef inspired. dog desired. megyn: "fox news alert". a sea of demonstrators outside the united nations. worried that iran is getting chrisly close to a nuclear weapon. brand new hour here of "america live". hi, everybody, i'm megyn kelly. thousands gathering on the streets of new york city protesting iran's radical president, mahmoud ahmadinejad. he is expected to speak in a little over an hour from now. they seek on the very same nuclear watchdog board investigating tehran. ambassador john bolton just spoke at the protest. the former u.s. ambassador to the united nations and now a fox news contributor. you were amongst these protesters moments ago, ambassador. why? what moved you to go over there and join these protesters? what is it you want? >> well i think for the

interest of the united states and for the interests of the people of iran they ought to have a chance to pick their own government. and if they did, i think there is very little doubt it would not be mahmoud ahmadinejad. this demonstration was largely iranian-americans. people who came to this country from iran. many of whom still have family an friends victimized by the regime in tehran. and this is their way of say they don't appreciate ahmadinejad visiting new york. megyn: you, the president spoke this morning in front that u.n. assembly and said that the door to diplomacy remains open. should iran choose to walk through it. they have had a dual approach with iran. sort of trying to impose sanctions. iran is already under four sets of u.n. sanctions while still extending the olive branch if you will. you say at the time regime change is the answer? >> right. both of president obama's policies have failed. the sanctions aren't working. they're not going to stop iran from getting nuclear

weapons. in fact the administration doesn't claim anymore that they will. they say the purpose of the sanctions is to bring iran back to the negotiating table which brings us to the other leg of their policy and continuing to say 20 months into the administration that they have still got that open hand out there sends a signal of weakness to mahmoud ahmadinejad. that he can continue to proceed with his nuclear weapons program without fear. sends a signal of american weakness to other rogue states around the world. megyn: but what are we supposed to do, ambassador? if you were in charge and you're somebody thinking about running for president, so you potentially could be in charge. what are we do to? we have already risked our relationship with many in the world embarking on these two wars whether you support the wars in afghanistan and iraq or not. there is question of appetite of american people to go after iran in any military way to pursue regime change. what are we supposed to do? >> well first the president of the united states is not

supposed to follow a popularity contest in the rest of the world. the decision to topple saddam hussein and to depose the taliban in afghanistan were based on critical american national interests, interests which are still valid to this day. there is no doubt that having tried for nearly 10 years through diplomacy and sanctions to stop iran from getting nuclear weapons, that the policies have failed. the most likely out come now is that iran gets nuclear weapons. that is extraordinarily unattractive. the only thing that stands between iran and nuclear weapons is the possibility that some outside power, israel, the united states, would strike those nuclear facilities. that's a very unattractive option but it is even more unattractive to contemplate iran with nuclear weapons. the threat it would pose in the region to our friends and allies there and to american interests all over the world. megyn: it is a sobering thought. ambassador john bolton. we appreciate it. >> thank you. megyn: once again, folks,

iran's president, mahmoud ahmadinejad takes the world stage at the u.n. general assembly just about an hour from now. this is causing all sorts of consternation. there is huge billboard in times square saying he is not welcome there you see protesters outside the united nations on east i'd of manhattan. in about an hour now he has given pretty dramatic speeches in past when given this opportunity. we'll track that news live right here on fox. wow!, i haven't seen that animation? have you seen that? kind of fancy. apparently go-time for the overhaul of health care. six months after the bill was signed into law first changes take effect today. here is how it might impact you. new extension of coverage for young adults allowing them to stay on their parents insurance for 26 years old. carriers will no longer be allowed to deny children coverage with prekisting conditions. insurers can no longer

impose lifetime restrictions on essential benefits on hospitalization and emergency care. no more caps. you exhausted money you had. we'll have more on all that shortly. a nationally known pastor embroiled in a graphic scandal saying that he will wait until sunday services to speak publicly about claims he coerced young men into having sex. elizabeth fran is live in atlanta with more. hi. we're talking about bishop eddie long. what are these men accusing him off? >> reporter: the boys were teenagers at the time all over the age of 16. that bishop eddie long coerced them into sexual acts. bribing them with plane rides and taking them on international trips. sharing bedrooms with teenagers calling them his spiritual sons. lawsuit says he put up a teenager in a home by the church. another accuser had a poor relationship with his father and long asked him to call

him daddy. it skribzs multiple times when long allegedly coerced the men into sexual acts. as far as evidence, we have photos released by b.j. bernstein. the she is the attorney representing all three boys. looks like pastor long is wearing a tight muscle shirt and tank top in what appears to be a bathroom. so b.j. bernstein says that there are perhaps more photos to come. dozens of e-mails and text messages will also be released in court. megyn. megyn: bishop long has been quiet since all this broke. what is his explanation for that? and what is the deal with speaking out about it at services? >> reporter: that's right. we haven't heard from him directly. we're scheduled to have a press conference with him today. he was also scheduled to be on a nationally syndicated radio show today. both were canceled although his attorney did appear on the radio show and quoting the pastor say, let me be clear. the charges against me and new birth are false. he went on to say the pastor will address his

congregation on sunday, megyn. megyn: what has the reaction been to this? this has turned out to be a pretty big scandal? >> reporter: despite the fact there could be other alleged victims. and a lot of people in local media reports are showing support for the pastor. nothing is proven so far. until it is proven they will stand by their pastor and support him. megyn: thanks, so much. republicans are promising to cut taxes and spending and say good-bye to the health care law that they want to replace. why are conservatives less than thrilled? neil boortz is up next. busted on a lunch break. the same union auto workers, personally praised by president obama, who went on-site with them, slamming back beers and smoking pot. and then going back to work to build cars. and you paid for it!. watch what happens when our "fox" reporter caught these guys on camera.

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megyn: back now to one of our top stories. house republicans rolling out their pledge to america today. warning that america can not wait for lower taxes and less government. take a listen to the man who could take the gavel from nancy pelosi if the gop does win control of the house in november. >> in order to create jobs, we need to end the uncertainty for job creators and the spending spree in washington and reform congress itself. government is out of control in washington and we need to rein it in and begin a new drive for a smaller, less costly and more accountable government in our nation's capitol. >> smaller, less costly and more accountable government. democrats no surprise,

blasting the republican agenda but even some on servetives are not thrilled with the pledge. syndicated radio talk show host neil boortz joins me live with more. great to see you again. we talked about at the top of our show. eric eric sob of red state says the pledge compromises milquetoast red tore ral flourishes in you've search of unanimity for house republicans because the house republicans don't have to the fortitude to lead opposition to barack obama. he is into the exactly a fan. >> i was looking forward to this yesterday. wow! we will see what they will do. as i read it and start looking at it i say, you know, i don't think this will work out too well. we just heard john boehner talking about we need to remove the uncertainty. well rather than saying we need to remove the uncertainty, just tell, or remind the peebl that the democrats are creating the uncertainty. i mean up until right now,

the focus was on the absolute disaster that is democrat rule in washington. now all of a sudden the focus is on the republican party. megyn: but they had to, neil. didn't they have to? what the democrats have been saying all along, they're the part of no. they're great to criticize us. where are their ideas? what will they do when they take over? this seems to be john boehner and republicans response to that to stop that line of argument. >> i know. i know. listen, it is darned if you do and darned if you don't. where is the word tax reform in this document? it's not there. where is the phrase corporate income tax? it's not there. where is the department of education? it's not there. now people start focusing on the things that aren't there. the things that the republicans don't seem to be addressing. i'm just, i'm just afraid and you're right, they needed to set forth an an

agenda. i'm afraid right now the focus shifted to the republican party. the democrats will get to start yelling racist and take social security away and take your dog food away. they will be able to do all these things and it will be a while now before we shift the focus back on the democrat train wreck in washington. megyn: these are some of the things they outline. government reform. they want to cite the specific constitutional authority underneath each piece of legislation. i can tell you that, as a lawyer that is going to prove disasterous. they want to -- >> you know what it is? megyn: you don't want to limit yourself, neil right? you're a lawyer too. you don't want to limit your defenses. want to go into court to say it was every provision. >> in every case they're going to cite commerce clause. megyn: yeah. >> in every case. how can you do this? commerce clause. how can you do that? oh, the commerce clause. we can limit the number of nose hairs you have with the commerce clause if we decide we want to do that. megyn: no, no.

no one wants that. but they have other things that are more appealing to tea partiers and others. make sure the bills are passed one at a time. don't stuff it with extraneous stuff. >> right. megyn: make sure bills posted 72 hours online so they read it. hello, do they read the bill? cracking down on spending. want freeze increases on domestic spending programs. they want to focus on national security saying no trying accused terrorists on u.s. soil. to me, neil, does sound like the again embodiment of republican principles. they speak a little to their issues of promoting life and traditional marriage also. but it doesn't get specific enough that they could really take a beating from the other side. is erick erickson right, yes a little milquetoast but might that be effective way of avoiding the big punch back? >> moib so. maybe so. here is our plan out there. now stop talking about it. go right back to start focusing what the democrats are doing. foregoodness sakes, republicans, don't get,

don't get into this social stuff again about family values and the social end of this. stick to what the democrats are doing to hold our businesses down. to hold our economy down and to rob our children and grandchildren of a good future in this country. megyn: neil boortz, always interesting hearing from you, thank you, sir. >> thanks. bye-bye. megyn: folks you are not going to believe this but it is true. we thought it was a joke. no joke. stephen colbert is scheduled to testify on capitol hill, in character. waste of taxpayer dollars anyone? coming up, the lawmaker who says this sounds like a joke but he is not laughing. auto workers in the motor city caught smoking and we're not talking tires. drinking, drugging and digging themselves into a very deep hole. wait until you see this in depth fox news investigation and what happens when a fox news reporter drops by to

confront them with a camera, and some questions. >> hate to be a buzz kill but shouldn't you guys be building cars? don't you guys work out at the chrysler factory? you know, the government spent a lot of money bailing you guys out. and, you are coming out here on your lunch break drinking like this. where are you guys going, man? are you going to go build some cars now after you had a few beers? you could switch for great gas mileage or seats that flip and fold with one hand. you could switch for up to 600 highway miles on a single tank of gas. or the hundred-thousand mile powertrain warranty. over a thousand people a day are switching to chevy. they're not just trading in, they're trading up. qualified lessees can get low mileage lease on this 2011 malibu ls for around one ninety-nine a month.

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megyn: this story is unbelievable. slacking off, smoking pot, shrugging down beers at break time in detroit a handful of motown auto workers caught in the act. pounding the brewskies and burning a lot more than rubber on the job. and the only reason these

guys still even have a steady 9:00 to 5:00, because you, the american taxpayer bailed out the motor city. fox affiliate reporter rob wolchek with a gotcha, you will not forget. >> there ain't no party like a detroit party. the party in this park is off the hook. drinking, smoking. getting a quick buzz because this party is not at all minor. it is not even noon yet. hey guys. hate to be a buzz kill, shouldn't you guys be building cars? you know, the government spent a lot money bailing you guys out. >> get out of here. >> you're coming out here on your lunch break, drinking like this? this is chrysler's jefferson north assembly plant. more than three million square feet of factory. 2833 well-paid union auto workers pass through these gates. inside, they build one of the crown jewels of the chrysler line, the 2011 jeep

grand cherokee. [applause] less than two months ago, president barack obama himself stood on the floor of the jefferson north plant and spoke to a cheering crowd of workers. who wouldn't applaud the man who signed off on more than $6 billion of government money to to save their jobs. >> i want all of you to know, i will bet on the american worker any day of the week!. [cheers and applause] i have confidence in the american worker. i have confidence in you. i have confidence in the united states. [cheers and applause] >> yep, this place is still here because of our tax money, a giant bailout. man, you would think if the president stopped by to give you a pep talk you would be inspired to do more, to be more, to build more. to drink more? we got a tip some chrysler workers were using their lunch break to catch a buzz.

so we started following them just five days after president obama's visit. and caught them day, after day, hitting up the party store. then hitting a public park to pound beers. oh, and did i mention a little smokin'? the day shift at jeff north starts at 6:00 a.m. at 11 there is a half hour lunch break. parters have just enough time to head up to the liquor store, drive about a mile to the park, consume for 10 minutes, and get back to the plant in time to work the last three hours of their shift. tuesday, september 14th, 10:57 a.m. here comes our crew, out for break. now at the party store. 11:07. hitting coolers for liquid refreshment. they are key players. check out the handoff. he has a beer and tin can as he waits in the checkout line. this guy has his hands full too.

looks like he was buying for his buddy in the minivan. 1 is: 09 and the party started. these dudes join the bash at 11:11. a minute later come the big brew crew. they never missed a day we were watching. last but not least, these guys show up at 11:15 a.m. they brought their a game. take as hit. take as swig. another drag. then slugs on a mini bottle. the party breaks up but at 11:22. by 11:25 everybody is back at the factory, on time! wouldn't want to be written up for being late. and remember, we saw this day after day after day. in fact, every day we went to the park during lunch, people were there partying. finally. last friday. we had seen enough. hey guys, hate to be a buzz kill, shouldn't you guys be building cars? don't you guys work out at the chrysler factory? you know, the government

spent a lot of money bailing you guys out. >> get out of here. >> you coming out here on your lunch break drinking like this? where are you guys going, man? are you going to go build some cars now after you had a few years beers? in detroit. rob walchak. fox news. megyn: i mean, you know, booze, pot, driving under the influence, littering? building your jeep cherokee while intoxicated. not cool!. jim wolchak with our affiliate in detroit doing a stunning job there, including just days after the president went there to give them a pep talk. is this how they respond when they get a pep talk? if so, no more pep talks. gm says the behavior will is unacceptable and dealt with it swiftly. some of the people were identified, no, not fired.

suspended indefinitely without pay while the union tries to negotiate something. we will be staying on this one as you can imagine, to find out exactly what happens to the folks working so hard out there in detroit. a police officer finds out his 14-year-old daughter had sex wither her boyfriend, a 15-year-old boy. what that officer did next to the boy lands them all in kelly's court. stephen coal bear a fake political pundit, putting a funny spin of the news of the day every night on comedy central. but now he is taking his act to capitol hill to testify before the u.s. congress, in character. somebody thought this was a good idea and a good expense of your taxpayer dollars. we'll speak with one congressman who is not laughing about it. [ male announcer ] if you have type 2 diabetes,

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megyn: welcome back folks. 2:30 here in the east. a couple stories we're following for you right now. president obama telling the united nations general assembly iran must prove its nuclear program for peaceful purposes only or it will surf the consequences. iranian president mahmoud ahmadinejad is expected to address the world body within the next hour. existing u.s. homes

sales climbing 7.6% in august after hitting a record low in july. despite the gains, home resales remain at their second lowest level on record. disturbing new details in a deadly home invasion in connecticut. prosecutors saying the two men charged with killing a woman and her two daughters texted each other numerous times before their horrific acts. one of the men texting he had to first put his own child to bed before he headed over to the petit family's home. well, this is not a, this is not a made-up story. i thought it was. i said this can't be right and yet it is. stephen colbert is set to testify before congress, in character, seriously. the host of comedy central's colbert report, will go before a house subcommittee on immigration tomorrow. this all came about after the president of the united farmworkers union went on colbert's show claiming

americans actually don't want to do the work that illegals do, namely work in our country's farms. so the he says, give the work to illegals. they're the ones who want it. now colbert will be considered an expert witness on this. my next guest, not too happy about it. republican congressman jason chafe fets of utah is my guest now. congressman, this is serious business. it is house judiciary's committee immigration subcommittee. and you're telling me that your colleagues will waste our taxpayer dollars listening to stephen colbert testify about his thoughts? >> i know. i couldn't believe it either. he is probably the best fake newscaster on television. i guess will have a hearing --. megyn: i think jon stewart would take issue with that. >> i would love to see him duke it out. i love colbert. i've been on his show. i lost a leg wrestling match to him. he is funny guy and we're

having a serious discussion about i am my grags and they call stephen colbert? what are the democrats thinking about? i can't justify in any way shape or form. it is very expensive to hold these hearings. what people need to understand i've been on this subcommittee 21 months. i'm just a freshman here. we have never had had any substantive discussion on any nim i graduation issue. met 10 times. never had a hearing, looked at serious bill about immigration. it is a serious issue and call in colbert as the first guy. megyn: apparently representative sew lofgren, chairperson of the chairman of the subcommittee out of the california. this was apparently her idea. they apparently think this will somehow help the debate. why, i don't know. apparently colbert went out and did the farm of a job worker per that union worker's, that gentleman, the united farmworkers invitation. now he is going to testify about it. i want to ask you, congressman, how are the american people supposed to take the democrats claims

seriously, they are taking immigration seriously when you're wasting time, with all due respect to stephen colbert, he is brilliant comedian, but not an expert on immigration. >> the room will be packed. everybody will want to take a picture with him and autograph or not. we're not here to make comedy central look good. we do it by ourselves. we don't need him to testify to boost up the ratings of comedy central. everybody knows and understands immigration is broken. no one wants to fix it more than me. but we can't have a markup on a decent bill or a hearing with any degreer of seriousness. instead democrats want to call up colbert. megyn: is there something to be said for publicity it will get? maybe people tune in to c-span to watch him? i was shocked to learn he is not the only, well, i don't want to call him undistinguished, but not only controversial figure to testify before congress. you know who else testified before congress? elmo. elmo. look at him in his little

suit, testifying before congress. i will say, maybe, maybe -- >> i believe elmo more than colbert. elmo, every time. i have no problem with elmo. megyn: he is a big spokesman for literacy. i don't know. is there an argument to be made that colbert, we wouldn't be doing this segment, people are thinking about it, maybe people tune into c-span tomorrow. they will have four viewers instead of two? >> i introduced a immigration resolution. i had 12 republicans and 10 democrats. now over 60 members. democrats refused to bring it forward. i done it in a bipartisan way. instead of dealing with resolutions and legislation that can help fix the immigration problem we'll spend hours, i don't know how many tens of thousands of dollars of taxpayer money to have this, what will be a joke. it will be on the front page of various newspapers and they will laugh about it and everything but we've got a problem. that is what is so frustrating in the heartland. we've got to solve these problems. instead we have the guy from the colbert report. megyn: we have people in

arizona who are really concerned about this issue in particular. we had kt mcfarland on this broadcast one of the growing terror threats is somalian terrorists crossing our southern border, coming across the into the country undocumented causing terror. and we have to listen to stephen colbert and his day on the farm. we'll look forward to that. >> thanks, megyn. appreciate it. megyn: thank you, con man. we'll take your thoughts at kelly@foxnews.com. we only wish we were joking. permanent support for the bush tax cuts. 300 economists with the national taxpayers union, failure to extend the cuts will be a profound and damaging anti-stimulus. the plan wants president obama to ex-continued the tax cuts for everyone the so-called rich, that would be is a devastating blow to the economy. bush era tax cuts are set to expire the beginning of january. how far would you go to protect your children?

>> from what i understand the parents, the family did not consent to this in any way. >> if there is a violation committed, then the officer believes there is a violation committed, we are within our right. >> i think at a minimum he should be fired. that is going to be up to the district attorney's office. i think, at a minimum it will set a great example. megyn: win police officer using his badge, and his gun for a little civilian justice. what he did to his daughter's 15-year-old boyfriend and why it could cost him thinks badge. during the break check out foxnews.com/americalive. click on the on the docket section and read on the case before the gavel drops in 8 kelly's court. this after the break. than tylenol 8 hour. so why am i still thinking about this? how are you? good, how are you? [ male announcer ] aleve. proven better on pain.

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ahmadinejad. do you wonder what that conversation was like and what was his tone like? we talked to jim before the program and what he told our bookers was fascinating to me. his tone was very interesting and what he is trying to do and his problems at home, ahmadinejad. he has got a heap of them. we'll get into all of it at the top of the hour on the b. megyn: we'll be watching. >> thanks. megyn: kelly's court is back in session. on the docket today, stretching the long arm of the law to teach your little girl's frisky friend a lesson. a west coast cop is in danger of losing his badge and gun after slapping the cuffs on a 15-year-old kid. san jose fever finds out that his daughter, who is 14 years old, had sex with her 15-year-old boyfriend. so the cop pays the boy a visit. after a shift on the beat. dressed in full uniform. and then he, according to the parents of that boy, pretends to arrest the teenage boy and puts the cuffs on him. turns out, shortly thereafter he tells the kid,

never mind. and then pulls the parents aside and says, i didn't actually arrest him. the boy's parents, not okay with the man's tactics at all. >> from what i understand the parents, the family did not consent to this in any way. it was upset father and i can almost understand his reaction but to use his law enforcement authority was absolutely out of line. megyn: so, should he lose his badge and should he be faced with criminal charges as some are now suggesting. let's ask our panel. defense attorney, mike, and trial attorney lee armstrong. panel, i know you both have daughters. mark, this guy apparently went over there put the fear of god into this 15-year-old boy and the parents were right there as it happened. they want this cop's badge and they want him in serious trouble. >> and he should be. my daughter, thank god is only six, and i've got a while before i have to deal with this but i do understand the officer's

emotional reaction. his physical reaction? is unacceptable. at a minimum i think he should lose his job and doesn't it qualify as a crime under the california penal code, 236? absolutely. false imprisonment. megyn: is it false imprisonment. mark i'm sorry. we lost your mike phone. >> it is. >> lee is it false imprisonment? the department says they have no policy of police officer investigating a matter with a personal or emotional interest at stake?. >> was it unwise, or smartest thing to do? it was not the smartest thing to do. should the department discipline in some way? yeah. should he be arrested, prosecuted and go to jail, no, of course not. he has viable offenses. two defenses are consent and justification. megyn: parent say they didn't consent. >> what does his attorney say? megyn: they did. >> we weren't in the room. we don't know. mark i don't know if we have his mike back yet. >> i'm back and i disagree

with you. >> there is that voice. why did we get his mic back? i think, mark, even mark would agree with me that if the parents consented to this scared straight theatrical tactic, that there could be no false imprisonment. can i stop there? do we have agreement on that. >> i will concede to that, lee, yes. >> typical lawyer. couldn't say yes. >> i said yes. those are not the facts however. >> no, no. it is disputed, mark. it is disputed wlornd he consented. hold on a second. he says that they did consent. they say they did not. we weren't there. we don't know. before we prosecute them let's note there is factual dispute, you and i, we're not oracles. you are but i'm not. we don't know what happened. >> i agree with that. megyn: let me jump in on this. fine, if they consented no case. >> right. megyn: if they did not consent is it false imprisonment? because what he is saying technically it is a crime out here in california. it is a crime for a

15-year-old boy and 14-year-old girl to have sex. if both children committed a misdemeanor. what is wrong with a police officer, like this man, mark, going to one of the alleged criminals, and saying, you may be placed under arrest and you better not do this again, otherwise you are going to go to jail? what did he do that was so wrong, mark? >> objection. assumes fact that did not take place. that is not what he did. what the facts are is that the guy used his taxpayer-funded police vehicle to check the license plate of the vehicle driven by the son to locate his address. he came there in full police uniform and his taxpayer-funded handcuffs in order to teach him a lesson for deflowering his 14-year-old daughter. that's what it was. megyn: go ahead. >> he didn't answer your question. i will answer your question. >> i feel like i did. >> of course, here's what happened. undisputed a crime was

committed. underage relations? would this ever be prosecuted? no. this falls under heading while we're on the subject. if you are going to prosecute the cop, he will come back and say technically they were violating the law. justification. first is consent. second is justification. justification when a crime has been committed. he can absolutely rely on that. because of that, that's another reason that this prosecution should never go forward. if it does -- >> lee, i'm looking at policy. i'm looking at police policy here. they do not have an exception. they don't let officers investigate the, their own cases where they have an interest in the outcome. >> that is not even true. megyn: listen, this is from san jose officer jose garcia. quote, our department has no policy prohibiting an officer from investigating a case or being involved in a case where he knows the involved parties or, is emotionally involved with the incident. they have no policy. >> hold on. are you writing your own policies again, mark? >> i'm reading this. city policy employees must be impartial in their duties. i don't think this was him

being impartial. >> who's policy is that? megyn read you the policy from the police department. you said city employees. is that omnibus procedure. i haven't seen that. >> don't throw around the big words. >> here is the bottom line question i have for you lee, mark points out he is under collar of authority. got the handcuffs. shows up in uniform on a police motorcycle. >> yeah. megyn: so what? a crime was committed. what did he do so wrong went to one party in the crime said you will be in a lot of trouble if you continue this? >> here is what he did so wrong. the guy is not criminal. shouldn't lose his job or send him to jail. it was not wise to do. he went there under the power of his office. look, i have a daughter who is a little closer in time to this. so when i start to think of that, -- well, i don't want to think about that. get back on track. if you look at this dispassionately, you say yes he stepped over the line in terms of what he really

should have done even if the other parents consented. too close to this. should not have done it. is it criminal? doesn't appear so to me. megyn: quickly, mark. >> if he was there as a dad committed a criminal offense. he was not there as a law enforcement officer. there is nothing in the statutes that allow dads to put handcuffs on them if they committed a crime. >> what do you think they're setting up? do you think a lawsuit follows? the boy learned a lesson maybe he didn't. the fox said keep the snake in its cage and get us in trouble and knock it off. instead they filed the complaint maybe what happens next? lawsuit. megyn: in defense of the parents they filed the complaint apparently after this guy then went back to another officer at the department and they made a phone call and then charges were brought against the two kids. then the parents got really ticked off. >> screwed up there. >> the daughter too. the charges are brought against the daughter. megyn: both kids, daughter and son. got to go guys. we could keep this going all day. we are literally about to

have a trial. see you mark. see you lee. one final word to the viewers. not entirely clear to me this cop did anything legally wrong. technically the children committed a crime. he is a cop who is under no policy restraining him from investigating cases in which he is related to the parties. was it good judgment? no. but should he lose his badge? charged with a crime for being an overprotective father? i don't think so. got breaking news from the pentagon right now. the defense secretary just talked about this explosive book from bob woodward. this book claims that top military leaders have little confidence in our afghanistan battle plan that was drawn up by the commander-in-chief. defense secretary gates in his own woods, next. -- words

megyn: "fox news alert". breaking news from the pentagon where the defense secretary just addressed questions about bob woodward's new book. that book, "obama's wars" comes out next week, reports on dramatic disputes between the white house and top military leaders on the strategy in afghanistan. take a listen to defense secretary gates moments ago. >> i guess i would just, since i figured we would get a question on this book, there are actually three points i'd like to make. the first is, conflict sells. the second, the relationship among senior officials in this administration is as harmonious as any i have experienced in my time in government. and the third is, and i believe this very strongly, presidents are always well-served when there is a vigorous and spirited debate over important issues. and i felt that the debate

with respect to afghanistan was instructive. i learned things in the course of that debate. my positions changed or were adjusted, or i adjusted them at various points. so i thought it was a constructive process. megyn: there you have it. folks, we're checking in for you in america's election headquarters. it has been a dramatic, a democratic strong hold for 50 years but now it could be a sleeper seat for republicans. we're looking to take back control of congress. the state of course is west virgina. governor joe manchin, once considered a shoe inn for the open senate seat now facing a heated battle with wealthy, well-known, gop opponent. campaign carl cameron live in the mountain state. sounds like the president is, on the ballot there, carl. the president? >> reporter: yeah. this is 2010. midterms and of course the president isn't but of course you're right, megyn. here in west virginia barack

obama may be the decisive personality and his agenda could turn the whole election. john raese, the republican, ran for office before, hammering hard on barack obama. joe manchin is popular incumbent democratic governor. he made something of a career going against the grain. moderate to conservative democrat and been really, really tough on barack obama and the agenda. you look at ads however, you see each side taking sort of normally expected positions. manchin attacking raese for his business record and raese attacking manchin for being much more liberal than he let's on. let's listen. >> john race z bad for mine workers. 600 safety violations. >> john raese puts profits before people. i don't trust him to look out for these minors. and neither should you. >> listen to joe manchin supporting obama care. >> i am totally behind health care reform and -- [applause] >> say it ain't so, joe? you are totally behind the

medicare cuts that will affect our seniors? you want bigger government and higher taxes to pay for it? sorry, joe, seniors can't afford you to be a rubberstamp for barack obama. >> reporter: megyn, manchin is not just running from the obama agenda, aggressively complaining against it. complaining parts of health care need to be repealed. that the cap-and-trade bill is bad. very aggressively distancing himself perhaps more anywhere else in the country. for mr. raese, it is a question letting voters make a decision on the president as so much on the democrat. megyn: carl, thank you. heartbreaking details on a triple murder in connecticut. we'll bring you details shortly and update on the union workers story we brought you next.

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